An Introduction to Human Rights in the UK Flashcards
Lecture 6
Central place of rights are in many constitutions. Provide some examples of where this is found.
- US Bill of Rights (1791)
- German Basic Law (1949)
- Canadian Charter of Fundamental Rights and Freedoms (1982)
What are rights and where do they come from? (Thomas Jefferson)
“self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights” (rights are just there and we cannot question it)
Describe what is meant by the idea of ‘inherent’ human dignity (from UN Universal Declaration of Human Rights 1948).
- A natural law/religious idea -> “responsibility before God and man” (German basic law)
- Non-religious view “rights … is not a gift of God”, it’s just there (Dworkin)
What does Bentham say about rights?
Idea of being born with rights being judt there cannot be challenged; seems nonsense
Describe what is meant by rights being political claims.
- “no over-riding human rights. No right to freedom … Instead there are political claims by individuals and by groups.” (JAG Griffith)
- Claims against those in power (to be argued for and accepted/denied)
- Subject to disagreement (like any morality)
- Political constitutionalism (rights as better decided by those who are accountable)
Provide the overall themes of Human Rights in the UK.
- Rights protection from state power (link to JR)
- How are rights protected in the UK
- How should rights be protected (e.g., Rights and disagreement; democracy, reform etc.)
(Pre-HRA) Contexualise Magna Carta 1215
- Document signed by King John for rights to citizens
- Legal myth? (when signed, it was on the battlefield under duress and annulled by pope after - “null and void of all validity for ever.”)
What is the significance of the “Bill of Rights” Act 1688/9
- More concerned with the rights of Parliament
- Right for making Parliament to make law supreme + getting rid of powers for monarch to get rid of laws they want
- No legal elements on Parliament’s power (Orthodox theory)
What question can be raised regarding the system of Parliamentary sovereignty?
Can we have rights if the lawmaker is supreme? (danger for individuals?)
What is the traditional idea of Civil Liberties? (pre-HRA)
- Megarry VC in Malone: you can do what you want unless the law goes against it (residual freedoms)
- BUT outcome of Malone case is against this (phone tapping is not illegal because no law against it)
What is Parliamentary Protection of Rights? (pre-HRA)
Parliament legislating positively for protection of rights
- Examples: Habeas Corpus Act 1697; Sex Discrimination Act 1975
What is the idea of Rights and the democratic process? (pre-HRA)
- Democratic and public accountability as means to secure rights
- Holding government to account (accountability, elections, indirect accountability)
What is the significance of Common Law Rights (pre-HRA)
- Fundamental rights recognised {e.g., access to courts in Witham and Free speech in Simms}
- Courts claim CLR taken seriously and Parliament cannot abolish this
- Courts will read act of Parliament and interpret this carefully to protect what rights require {Lord Hoffmann in Simms}
What is the significance of the ECHR’s (indirect) influence on domestic law? (pre-HRA)
- General presumption of statutory interpretation (Parliament presumed to legislate compatibly with international obligations) {Salomon}
- ECHR and interpretation of UK law {Brind}
- Taking account of ECHR in developing common law {AG v BBC}
What is the significance of the ECHR (1951) (link to the PREAMBLE)
- Reaffirm profound belief in fundamental freedom (foundation of justice + peace)
How would member states achieve these rights in Europe?
- ECHR sets out number of civil and political rights
- States obliged to “secure” rights to everyone within jurisdiction (not just citizens)
What are the different types of rights in the ECHR?
- Absolute: NEVER be limited (Art 3, 4, 7)
- Qualified: can be interfered with for particular aims, with a clear law going no further than necessary (most rights e.g., Art 10(2) freedom of expression)
- Limited: can be restricted only in very specific circumstances (e.g., Art 5 liberty + following criminal convictions)
What is the significance of proportionality and rights?
- Only limited as far as is “necessary in a democratic society) (to achieve the legitimate aims - e.g., national security; protection of morals)
- Sunday Times v UK: includes “proportionate to the legitimate aim being pursued.”
What is the significance of margin of appreciation?
- Provide scope/discretion to member states as to what is best for their own countries
- Narrower margin = more fundamental rights are involved
What were the main key points of the Bill of Rights Debate?
- 1990s - growing dissatisfaction with pre-HRA system
- Rights of people vs right of Parliament
- Negative liberties v positive rights
- Creating culture of rights (rights as “foreign”)
- Cost, expense, difficulty of taking cases to ECHR
What is the big question of the Bill of Rights Debate?
Do we want a Bill of Rights like e.g., US (and most countries), and how would it work for the UK?
(How much power to give courts enforcing these rights)
What are the key aims of the Human Rights Reform?
- “directly accessible the rights which the British people already enjoy under the Convention” (bringing rights home)
- Allowing enforcement in UK courts without “inordinate delay and cost”
- “enhance awareness of human rights in our society.”
Provide some key sections of the HRA.
- Section 6 & 7: who must respect rights
- Section 2: what do rights mean and how are they interpreted
- Sections 3 & 4: rights and effect on legislation
